Previously published in Law360
Employers are increasingly using social media to evaluate job candidates during the hiring process. Responses to this growing practice have varied widely and include applicants deleting their accounts while interviewing (or permanently), scrubbing their profiles of all unprofessional information and images, and/or restricting access to or limiting the visibility of their accounts to a select group of "friends."
The last of these three proactive measures is, however, no guarantee that a potential employer will never view a job applicant's password-protected social media profile. In fact, over the past several months, it was widely reported that human resources professionals and other hiring officials have been asking to do just that.
Lawmakers reacted to this practice with no shortage of outrage. In May of this year, Maryland passed a law expressly outlawing employer requests for social media login information, and since then, similar legislation has been introduced in about a dozen other states as well as at the federal level.
Despite this recent flurry of legislative activity, in most states, it is not per se illegal for employers to ask job applicants for their social media login information. This article provides an overview of the legal risks and potential benefits of doing so with a cautionary tale based on the 1999 movie "Office Space."
Let's say you're the director of human resources at a software company called Intertrode. Your company's top competitor, Initech, was recently put out of business by a fire that destroyed its entire operation. As a result, you find yourself sifting through dozens of resumes from former Initech software engineers. You decide to schedule interviews with two seemingly qualified candidates: Michael Bolton and Samir Nagheenanajar. They have all the right training and experience.
After interviewing Michael and Samir, you're almost certain that they would both be very successful at Intertrode, but you've been a human resources professional long enough to know that resumes and interviews often don't provide the "full picture" on job applicants. You don't want to make the mistake of hiring terrible employees just because they "look good on paper" and "say all the right things" when interviewing.
You want to dig a little deeper before you commit to either Michael or Samir. So, you ask them if you can log onto their Facebook accounts to review messages, pictures and posts. Michael and Samir reluctantly agree to let you do so. The reality is they don't have much of a choice as their job prospects are bleak considering their former employer's recent demise.
You start by flipping through Michael's photographs, and you're quite disturbed when you see several photographs of him and Samir in a field smashing a printer with a baseball bat. You can only assume that it belonged to their former employer. Obviously, Intertrode has policies prohibiting workplace violence and the destruction of company-owned property.
Next, you review Michael's status updates and wall posts from friends. You are quite surprised to...